Sixth Circuit Court of Appeals Stays FCC’s Net Neutrality Rules; Sends Signal to Stakeholders that Plans to Regulate Broadband Services are D.O.A.
Yesterday, the Sixth Circuit Court of Appeals issued an Order staying the Federal Communications Commission’s (FCC) Open Internet Order. This order, which was scheduled to go into effect on July 22, 2024, was previously stayed until August 5. The Court found the stay prudent, indicating that the broadband providers challenging the decision are likely to succeed on the merits.
Key Findings:
- Likelihood of Success: The Court noted that the final rule implicates a major question requiring clear congressional authorization, which the FCC failed to satisfy.
- Economic and Political Significance: The rule addresses a question of vast economic and political importance, and the Communications Act likely does not clearly authorize the FCC to make such a determination.
- Judicial Reasoning: According to the Court, “Absent a clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the Commission this sweeping power.”
Procedural Schedule:
- Oral Argument: Scheduled between October 28 – November 1, 2024.
- Briefs Submission: Petitioners’ briefs are due by August 12, 2024. Respondents’ briefs are due by September 11, 2024, or 30 days after the petitioners file their brief. Petitioners may file a reply brief by the sooner of October 2, 2024, or 21 days after the respondents’ brief.
Response from the FCC:
FCC Chairwoman Rosenworcel responded to the ruling, stating: “The American public wants an internet that is fast, open, and fair. Today’s decision by the Sixth Circuit is a setback, but we will not give up the fight for net neutrality.”
Implications for Broadband Providers:
- Reprieve for Providers: The stay provides a reprieve for broadband internet access service providers who otherwise would have faced significant and material operational and economic transformations to comply with the new rules.
- Signaling to FCC: The stay signals to the FCC that the Court believes any future attempts to regulate broadband internet access services (BIAS) as a major question require clear congressional authorization. This means Congress must pass legislation giving the FCC explicit authority.
For any questions or further advice, please do not hesitate to contact the attorney responsible for your account with our firm or, in the alternative, you may contact Michael P. Donahue directly at mpd@commlawgroup.com.
